By John Nebauer
Government, pastoral and mining industry figures had, it would seem, little to celebrate over Christmas. Indeed, from their chorus of indignation you'd think they were facing Armageddon.
Their consternation stems from the December 23 High Court ruling that native title is not necessarily extinguished by the granting of a pastoral lease, and that the two can co-exist.
On June 3, 1992, the High Court established the existence of native title in the Mabo decision, overturning the previous legal assumption of Terra Nullius (that Australia was an empty land when the British arrived). The Wik people of Cape York lodged a native title claim over sections of western Cape York peninsula which was rejected in January 1996 by the Federal Court on the basis that a pastoral lease extinguishes native title. On December 23, the Wik people's appeal against this ruling was upheld.
The Western Australia, Northern Territory and Queensland governments, as well as mining and pastoral companies, have blasted the decision, claiming that it will halt the development of 40% of Australia's land and lead to 20 years of legal cases and uncertainty.
Dan McGauchie, president of the National Farmers Federation, claimed on December 24 that development of Australia's rural industries would grind to a halt. "We are going to see people reluctant to invest, financiers reluctant to finance and local government authorities reluctant to make decisions on planning", he said.
The executive director of Queensland Mining Corporation, Michael Pinnock, described the decision as "an unmitigated disaster". The chief executive of the Association of Mining and Exploration Companies, George Sawell, argued, "We can't leave these matters to the courts. Native title is the biggest disaster for investment that has ever been visited on this country."
Various state and federal politicians were quick to express their sympathy for the plight of pastoral and mining interests. Deputy prime minister Tim Fischer said: "Legislation may be necessary to deal with the uncertainty created by the Wik decision. I support the provision of absolute certainty for pastoral leaseholders, and the best way that might be affected could well be through some form of legislation."
Victorian Premier Jeff Kennett also supported a legislative response from the federal government. Kennett called for changes to the Native Title Act and, if this went against the provisions of the Racial Discrimination Act (RDA), for this act to be amended also. He argued that "at the end of the process we want to have legislation that provides opportunity, certainty and consistency for people and if a piece of legislation in its present form doesn't provide opportunity, consistency and certainty then it should be subject to review".
Northern Territory chief minister Shane Stone was even more forthright, arguing that: "The parliament can do whatever it wants. It is the ultimate and supreme authority. It can legislate away compensation and can certainly make changes to the RDA."
Stone argued that the $1 billion Land Acquisition Fund, funded by the federal government over a 10 year period as part of the Native Title Act, should be redirected. Stone "reasoned" that "the land fund was set up on the understanding that native title was extinguished and the native title holders dispossessed. The Wik judgment has totally changed that equation. Aboriginal leaders cannot expect to press their claims for pastoral lease land unless they forgo the land fund or much of it. They cannot have their cake and eat it too."
Queensland Premier Rob Borbidge has called a special premiers' meeting, arguing that the Wik decision is the most important issue facing the federal government in 1997. This was followed by a call for a national referendum in order to "clear up" the issue.
Borbidge, WA Premier Richard Court and NT chief minister Stone seem likely to put together a legislative package to extinguish native title which will be presented to Canberra on January 20, with support from Fischer. Meanwhile, the Prime Minister has played a waiting game, rather than opting for immediate vituperation.
The federal government faces three obstacles to a legislative solution. First, any legislation extinguishing native title will be in breach of the RDA. At this stage the Howard government seems nervous about making wholesale changes to the act.
Second, any legislative solution or change to the RDA has to be passed through the Senate. Green, Democrat and independent senators have expressed their support for the High Court decision, and their opposition to a legislative solution.
Finally, any attempt on the part of the federal government to force a legislative solution would raise the spectre of compensation. The cost of potential compensation pay-outs if title is extinguished is not certain, and could lead to further litigation.
The torrent of criticism of this tiny step towards justice for Aborigines shows just how unwilling business and government are to attempt real "reconciliation". WA Greens Senator Dee Margetts explained that: "The Wik judgment says that when native title rights and pastoral lease rights conflict, then pastoral leases will override native title. Therefore, native title rights remain subordinate to pastoral lease rights and can only exist when they do not diminish grazing rights.
"The government should retract its amendments on the effective mining lease extinguishment of native title. It should treat both mining and pastoral leases on a case by case basis and fund mediation and negotiation bodies so that Aboriginal communities and industry can negotiate."
ALP spokesperson for Aboriginal affairs and lawyer for the Wik people, James Fitzgerald, confirmed that pastoral leases would take priority if native title proved inconsistent with the continued operation of the pastoral lease. In addition, Aboriginal people still have to fulfil the remaining rigorous criteria to claim native title, including a continuous association with the land.
Pastoralists and miners have lost nothing from the decision. Former National Farmers Federation executive director Rick Farley said that, "In realistic terms, nothing has changed. Pastoralists have more power over native title than they do over miners, nothing overrules mining, mining always goes ahead, the only question is that of compensation.
"The Wik decision will have greater impact on miners. Its effect means miners will have to negotiate with an extra party, [but] many have been doing that as a matter of course."
Aboriginal groups have responded by not opposing legislation to clear up uncertainties, while insisting that the substance of the Wik ruling be upheld. Aboriginal and Torres Strait Islander Commissioner Mick Dodson said that, "Any legislation must preserve the substance of indigenous rights, be consistent with the decision of the High Court and not be in breach of the RDA. Any move to amend the RDA could well be in breach of the international covenant on which the act is based."
The Aboriginal community has been far more wiling to sit at the negotiating table. The Cape York Land Council has convened a two-day summit for Aboriginal, industry and community representatives. Former chair of the council, Noel Pearson, said the summit was aimed at achieving a basic understanding: "We are actually going to discuss mundane things like access, fire, guns, infrastructure, roads, gates, camping, protection of traditionally important places. Those are issues that need to be thrashed out."